SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED LIABILITY COMPANY, dated
as of June 8, 1999 (the "Agreement"), of Cinergy Marketing & Trading, LLC (the
"Company"), by Cinergy Capital & Trading, Inc., as the sole member of the
Company (the "Member").
RECITALS
The Member desires to amend and restate the Agreement, in accordance
with the Act, as to the name of the Company.
AGREEMENT
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. Capitalized terms used but not otherwise
defined herein shall have the meanings assigned to them in the Act.
ARTICLE II
GENERAL PROVISIONS
SECTION 2.1 COMPANY NAME. The name of the Company is "Cinergy
Marketing & Trading, LLC." The business of the Company may be conducted
upon compliance with all applicable laws under any other name designated by
the member(s).
SECTION 2.2 REGISTERED OFFICE; REGISTERED AGENT.
(a) The Company shall maintain a registered office in the State
of Delaware at, and the name and address of the Company's registered
agent in the State of Delaware is, Corporation Trust Company, 0000
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx.
(b) The business address of the Company is 616 F.M. 0000 Xxxx,
Xxxxx 000, Xxxxxxx, Xxxxx, or such other place as the Member shall
designate.
SECTION 2.3 NATURE OF BUSINESS PERMITTED; POWERS. The Company may
carry on any lawful business, purpose or activity. The Company shall
possess and may exercise all the powers and privileges granted by the Act
or by any other law or by this Agreement, together with any powers
incidental thereto, so far as such powers and privileges are necessary or
convenient to the conduct, promotion or attainment of the business purposes
or activities of the Company.
SECTION 2.4 BUSINESS TRANSACTIONS OF A MEMBER WITH THE COMPANY. In
accordance with Section 18-107 of the Act, a member may transact business
with the Company and, subject to applicable law, shall have the same rights
and obligations with respect to any such matter as a person who is not a
member.
SECTION 2.5 FISCAL YEAR. The fiscal year of the Company (the "Fiscal
Year") for financial statement purposes shall end on December 31 of each
year.
ARTICLE III
MEMBER(S)
SECTION 3.1 ADMISSION OF MEMBER(S). The initial ownership of Common
Interests (as herein defined) is listed on Schedule 1 attached hereto. The
Company shall be required to update Schedule 1 from time to time as
necessary to reflect accurately the information therein. New member(s)
shall be admitted only with the approval of the Member.
SECTION 3.2 CLASSES.
(a) The membership interests of the Company shall consist of
common membership interests ("Common Interests").
(b) All Common Interests shall be identical with each other in
every respect, except that, should additional member(s) be admitted,
Common Interests of each member shall reflect its capital account
relative to the other member(s).
SECTION 3.3 LIABILITY OF MEMBER(S).
(a) All debts, obligations and liabilities of the Company,
whether arising in contract, tort or otherwise, shall be solely the
debts, obligations and liabilities of the Company, and no member shall
be obligated personally for any such debt, obligation or liability of
the Company solely by reason of being a member.
(b) Except as otherwise expressly required by law, a member shall
not have any liability in excess of (i) the amount of its capital
contribution to the Company, (ii) its share of any assets and
undistributed profits of the Company, (iii) its obligation to make
other payments, if any, expressly provided for in this Agreement or
any amendment hereto and (iv) the amount of any distributions
wrongfully distributed to it.
SECTION 3.4 ACCESS TO AND CONFIDENTIALITY OF INFORMATION; RECORDS.
(a) Any member shall have the right to obtain from the Company
from time to time upon reasonable demand for any purpose reasonably
related to the member's interest as a member of the Company, the
documents and other information described in Section 18-305(a) of the
Act.
(b) Any demand by a member pursuant to this Section 3.4 shall be
in writing and shall state the purpose of such demand.
SECTION 3.5 MEETINGS OF MEMBER(S).
(a) Meetings of the member(s) may be called at any time by any
member.
(b) Except as otherwise provided by law, if additional member(s)
are admitted, a majority of the member(s), determined in proportion to
their respective interests in the Company, entitled to vote at the
meeting shall constitute a quorum at all meetings of the member(s).
(c) Any action required to or which may be taken at a meeting of
member(s) may be taken without a meeting, without prior notice and
without a vote, if a consent or consents in writing, setting forth the
action so taken, shall be signed by all member(s).
(d) Regular meetings of the member(s) shall be held at least
annually. Member(s) may participate in a meeting by means of
conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other,
and participation in a meeting by such means shall constitute presence
in person at such meeting.
SECTION 3.6 VOTE. Except as specifically set forth herein, the
business and affairs of the Company shall be managed by or under the
direction of the member(s) by majority vote.
SECTION 3.7 NOTICE. Meetings of the member(s) may be held at such
places and at such times as the member(s) may from time to time determine.
Any member may at any time call a meeting of the member(s). Written notice
of the time, place, and purpose of such meeting shall be served by
registered or certified prepaid, first class mail, via overnight courier
using a nationally reputable courier, or by fax or cable, upon each member
and shall be given at least two (2) business days prior to the time of the
meeting. No notice of a meeting need be given to any member if a written
waiver of notice, executed before or after the meeting by such member
thereunto duly authorized, is filed with the records of the meeting, or to
any member who attends the meeting without protesting prior thereto or at
its commencement the lack of notice to him or her. A waiver of notice need
not specify the purposes of the meeting.
SECTION 3.8 DELEGATION OF POWERS. Subject to any limitations set forth
in the Act, the member(s) may delegate any of its powers to officers of the
Company or to committees consisting of persons who may or may not be
member(s). Every officer or committee shall, in the exercise of the power
so delegated, comply with any restrictions that may be imposed on them by
the member(s).
SECTION 3.9 WITHDRAWALS AND REMOVALS OF MEMBER(S). No member may
resign, withdraw or be removed as a member of the Company without the
written consent of all of the member(s).
ARTICLE IV
MANAGEMENT
SECTION 4.1 OFFICERS.
(a) ELECTION, TERM OF OFFICE. Officers shall be elected annually
by the member(s). Except as provided in paragraphs (b) or (c) of this
Section 4.1, each officer shall hold office until his or her successor
shall have been chosen and qualified. Any two offices, except those of
the President and the Secretary, may be held by the same person, but
no officer shall execute, acknowledge or verify any instrument in more
than one capacity if such instrument is required by law or this
Agreement to be executed, acknowledged or verified by any two or more
officers.
(b) RESIGNATIONS AND REMOVALS. Any officer may resign his or her
office at any time by delivering a written resignation to the
member(s). Unless otherwise specified therein, such resignation shall
take effect upon delivery. Any officer may be removed from office with
or without cause by either the member(s) or the President.
(c) VACANCIES AND NEWLY CREATED OFFICES. If any vacancy shall
occur in any office by reason of death, resignation, removal,
disqualification or other cause, or if any new office shall be
created, such vacancies or newly created offices may be filled by the
President, subject to approval and election by the member(s).
(d) CONDUCT OF BUSINESS. Subject to the provisions of this
Agreement, the day-to-day operations of the Company shall be managed
by its officers and such officers shall have full power and authority
to make all business decisions, enter into all commitments and take
such other actions in connection with the business and operations of
the Company as they deem appropriate. Such officers shall perform
their duties in a manner consistent with this Agreement and with
directions which may be given from time to time by the member(s).
(e) PRESIDENT. Subject to the further directives of the
member(s), the President shall have general and active management of
the business of the Company subject to the supervision of the
member(s), shall see that all orders and resolutions of the member(s)
are carried into effect and shall have such additional powers and
authority as are specified by the provisions of this Agreement.
(f) SECRETARY. The Secretary shall attend all meetings of the
member(s) and record all the proceedings of the meetings and all
actions taken thereat in a book to be kept for that purpose and shall
perform like duties for the standing committees when required. The
Secretary shall give, or cause to be given, notice of all meetings of
the member(s), and shall perform such other duties as may be
prescribed by the member(s) or the President. The Assistant Secretary,
if there be one, shall, in the absence of the Secretary or in the
event of the Secretary's inability to act, perform the duties and
exercise the powers of the Secretary and shall perform such other
duties and have such other powers as the member(s) may from time to
time prescribe.
(g) OTHER OFFICERS. The member(s) from time to time may appoint
such other subordinate officers or agents as it may deem advisable,
each of whom shall have such title, hold office for such period, have
such authority and perform such duties as the member(s) may determine
in its sole discretion. The member(s) from time to time may delegate
to one or more officers or agents the power to appoint any such
subordinate officers or agents and prescribe their respective rights,
terms of office, authorities and duties.
(h) OFFICERS AS AGENTS; AUTHORITY. The officers, to the extent of
their powers set forth in this Agreement and/or delegated to them by
the member(s), are agents and managers of the Company for the purpose
of the Company's business, and the actions of the officers taken in
accordance with such powers shall bind the Company.
SECTION 4.2 RELIANCE BY THIRD PARTIES. Persons dealing with the
Company are entitled to rely conclusively upon the power and authority of
the member(s) herein set forth.
SECTION 4.3 EXPENSES. Except as otherwise provided in this Agreement,
the Company shall be responsible for and shall pay all expenses out of
funds of the Company determined by the member(s) to be available for such
purpose, provided that such expenses are those of the Company or are
otherwise incurred by the member(s) in connection with this Agreement,
including, without limitation:
(a) all expenses related to the business of the Company and all
routine administrative expenses of the Company, including the
maintenance of books and records of the Company, the preparation and
dispatch to any member(s) of checks, financial reports, tax returns
and notices required pursuant to this Agreement or in connection with
the holding of any meetings of the member(s);
(b) all expenses incurred in connection with any litigation or
arbitration involving the Company (including the cost of any
investigation and preparation) and the amount of any judgment or
settlement paid in connection therewith;
(c) all expenses for indemnity or contribution payable by the
Company to any person;
(d) all expenses incurred in connection with the collection of
amounts due to the Company from any person;
(e) all expenses incurred in connection with the preparation of
amendments to this Agreement; and
(f) expenses incurred in connection with the liquidation,
dissolution and winding up of the Company.
ARTICLE V
FINANCE
SECTION 5.1 FORM OF CONTRIBUTION. The contribution of a member to the
Company must be in cash or property, provided that if there is more than
one member, all member(s) must consent in writing to contributions of
property. To the extent there is more than one member, additional
contributions in the same proportion shall be made by each member, except
as may be approved by all member(s). A capital account shall be maintained
for each member, to which contributions and profits shall be credited and
against which distributions and losses shall be charged. At any time that
there is more than one member, capital accounts shall be maintained in
accordance with the tax accounting principles prescribed by the Treasury
Regulations promulgated under Code Section 704 (the "Allocation
Regulations"), so that the tax allocations provided in this Agreement
shall, to the extent possible, have "substantial economic effect" within
the meaning of the Allocation Regulations, or, if such allocations cannot
have substantial economic effect, so that they may be deemed to be "in
accordance with the member(s') interests in the Company" within the meaning
of the Allocation Regulations.
SECTION 5.2 ALLOCATION OF PROFITS AND LOSSES. The profits and losses
of the Company shall be allocated entirely to the Member or, if additional
member(s) are admitted, the member(s) in proportion to their respective
capital accounts.
SECTION 5.3 ALLOCATION OF DISTRIBUTIONS. The distributions of the
Company shall be allocated entirely to the Member or, if additional
member(s) are admitted, the member(s) in proportion to their respective
capital accounts.
ARTICLE VI
DISTRIBUTION
SECTION 6.1 DISTRIBUTION IN KIND. Notwithstanding the provisions of
Section 18-605 of the Act, a member may receive distributions from the
Company in any form other than cash, and may be compelled to accept a
distribution of any asset in kind from the Company.
ARTICLE VII
ASSIGNMENT OF MEMBERSHIP AND COMMON INTERESTS
SECTION 7.1 ASSIGNMENT OF MEMBERSHIP AND COMMON INTERESTS. Membership
and Common Interests in the Company shall be assignable and transferable.
Any transferee shall not be admitted as a member unless and until the
transferee has executed a counterpart of this Agreement.
SECTION 7.2 CERTIFICATES. Common Interests in the Company may, but
need not be, evidenced by a certificate of limited liability company
interest issued by the Company.
ARTICLE VIII
DISSOLUTION
SECTION 8.1 DURATION AND DISSOLUTION. The duration of the Company
shall be perpetual.
SECTION 8.2 WINDING UP. Subject to the provisions of the Act, the
Member or, if additional member(s) are admitted, the member(s) (acting by
written consent of all member(s)) shall have the right to wind up the
Company's affairs in accordance with Section 18-803 of the Act (and shall
promptly do so upon dissolution of the Company in accordance with Section
8.1) and shall also have the right to act as or appoint a liquidating
trustee in connection therewith.
SECTION 8.3 DISTRIBUTION OF ASSETS. Upon the winding up of the
Company, the assets shall be distributed in the manner provided in Section
18-804 of the Act.
ARTICLE IX
TAX CHARACTERIZATION; REPORTS
SECTION 9.1 TAX TREATMENT. The Company shall timely make all necessary
elections and filings for federal, state, and local tax purposes such that
it will not be treated as a separate entity, but, instead, will be
disregarded, for federal, state, and local tax purposes.
SECTION 9.2 FORM K-1. After the end of each Fiscal Year for which the
Company shall have more than one member, the member(s) shall cause to be
prepared and transmitted, as promptly as possible, and in any event within
90 days of the close of such Fiscal Year, a federal income tax Form K-1 and
any required similar state income tax form for each member.
SECTION 9.3 COMPANY TAX RETURNS. The Member, or if additional
member(s) are admitted, the member(s) shall cause to be prepared and timely
filed all tax returns required to be filed for the Company. The Member or
the member(s) (as the case may be) may, in their sole discretion, make or
refrain from making any federal, state or local income or other tax
elections for the Company that it deems necessary or advisable; provided
that if there is more than one member, the prior written consent of all the
member(s) shall be required in order for the Company to make an election
pursuant to Section 754 of the Internal Revenue Code of 1986, as amended
(the "Code").
ARTICLE X
EXCULPATION AND INDEMNIFICATION
SECTION 10.1 EXCULPATION. Notwithstanding any other provisions of this
Agreement, whether express or implied, or obligation or duty at law or in
equity, any member, or any officers, directors, stockholders, partners,
employees, representatives or agents of any of the foregoing, nor any
officer, employee, representative, Manager or agent of the Company or any
of its affiliates (individually, a "Covered Person" and collectively, the
"Covered Persons") shall be liable to the Company or any other person for
any act or omission (in relation to the Company, this Agreement, any
related document or any transaction or investment contemplated hereby or
thereby) taken or omitted in good faith by a Covered Person and in the
reasonable belief that such act or omission is in or is not contrary to the
best interests of the Company and is within the scope of authority granted
to such Covered Person by the Agreement, provided that such act or omission
does not constitute fraud, willful misconduct, bad faith, or gross
negligence.
SECTION 10.2 INDEMNIFICATION. To the fullest extent permitted by law,
the Company shall indemnify and hold harmless each Covered Person from and
against any and all losses, claims, demands, liabilities, expenses,
judgments, fines, settlements and other amounts arising from any and all
claims, demands, actions, suits or proceedings, civil, criminal,
administrative or investigative, in which the Covered Person may be
involved, or threatened to be involved, as a party or otherwise, by reason
of its management of the affairs of the Company or which relates to or
arises out of the Company or its property, business or affairs. A Covered
Person shall not be entitled to indemnification under this Section 10.2
with respect to any claim, issue or matter in which it has engaged in
fraud, willful misconduct, bad faith or gross negligence.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 AMENDMENT TO THIS AGREEMENT. Except as otherwise provided
in this Agreement, this Agreement may be amended by, and only by, a written
instrument executed by the Member or, if additional member(s) are admitted,
unanimous consent of the member(s).
SECTION 11.2 SUCCESSORS; COUNTERPARTS. Subject to Article VIII, this
Agreement (a) shall be binding as to the executors, administrators,
estates, heirs and legal successors, or nominees or representatives, of the
Member or, if additional member(s) are admitted, the member(s) and (b) may
be executed in several counterparts with the same effect as if the parties
executing the several counterparts had all executed one counterpart.
SECTION 11.3 GOVERNING LAW; SEVERABILITY. This Agreement shall be
governed by and construed in accordance with the laws of the State of
Delaware without giving effect to the principles of conflict of laws
thereof. In particular, this Agreement shall be construed to the maximum
extent possible to comply with all the terms and conditions of the Act. If,
nevertheless, it shall be determined by a court of competent jurisdiction
that any provisions or wording of this Agreement shall be invalid or
unenforceable under the Act or other applicable law, such invalidity or
unenforceability shall not validate the entire Agreement and this Agreement
shall be construed so as to limit any term or provision so as to make it
enforceable or valid within the requirements of applicable law, and, in the
event such term or provisions cannot be so limited, this Agreement shall be
construed to omit such invalid or unenforceable terms or provisions. If it
shall be determined by a court of competent jurisdiction that any
provisions relating to the distributions and allocations of the Company or
to any expenses payable by the Company is invalid or unenforceable, this
Agreement shall be construed or interpreted so as (a) to make it
enforceable or valid and (b) to make the distributions and allocations as
closely equivalent to those set forth in this Agreement as is permissible
under applicable law.
SECTION 11.4 FILINGS. Following the execution and delivery of this
Agreement, the Member shall promptly prepare any documents required to be
filed and recorded under the Act, and the Member shall promptly cause each
such document to be filed and recorded in accordance with the Act and, to
the extent required by local law, to be filed and recorded or notice
thereof to be published in the appropriate place in each jurisdiction in
which the Company may hereafter establish a place of business. The Member
shall also promptly cause to be filed, recorded and published such
statements of fictitious business name and any other notices, certificates,
statements or other instruments required by any provision of any applicable
law of the United States or any state or other jurisdiction which governs
the conduct of its business from time to time.
SECTION 11.5 HEADINGS. Section and other headings contained in this
Agreement are for reference purposes only and are not intended to describe,
interpret, define or limit the scope or intent of this Agreement or any
provision hereof.
SECTION 11.6 ADDITIONAL DOCUMENTS. Each member agrees to perform all
further acts and execute, acknowledge and deliver any documents that may be
reasonably necessary to carry out the provisions of this Agreement.
SECTION 11.7 NOTICES. All notices, requests and other communications
to any member shall be in writing (including telecopier or similar writing)
and shall be given to such member (and any other person designated by such
member) at its address or telecopier number set forth in a schedule filed
with the records of the Company or such other address or telecopier number
as such member may hereafter specify for the purpose by notice. Each such
notice, request or other communication shall be effective (a) if given by
telecopier, when transmitted to the number specified pursuant to this
Section and the appropriate confirmation is received, (b) if given by mail,
72 hours after such communication is deposited in the mails with first
class postage prepaid, addressed as aforesaid, or (c) if given by any other
means, when delivered at the address specified pursuant to this Section.
SECTION 11.8 BOOKS AND RECORDS; ACCOUNTING. The Member or, if
additional member(s) are admitted, the member(s) shall keep or cause to be
kept at the address of the Company (or at such other place as the member(s)
shall determine in their discretion) true and full books and records
regarding the status of the business and financial condition of the
Company.
IN WITNESS WHEREOF, the undersigned has duly executed this Agreement
as of the date first above written.
CINERGY CAPITAL & TRADING, INC.
By: ________________________________
Xxxxxxx X. Cyrus
President
SCHEDULE 1
OWNERSHIP INTEREST
MEMBER % OWNERSHIP
Cinergy Capital & Trading, Inc. 100%
